William J. Rich


In the Slaughter-House Cases, Justice Field accused the majority of turning the Fourteenth Amendment’s Privileges or Immunities Clause into a “vain and idle enactment which accomplished nothing,” and Justice Swayne argued that the majority “turn[ed] . . . what was meant for bread into a stone.” Most contemporary commentators appear to agree... Did the framers of the Fourteenth Amendment make a colossal mistake? Or were Justices Field and Swayne correct when they blamed Justice Miller’s majority opinion in Slaughter-House for leading the nation astray? Answers to these questions, in the pages that follow, are “no” to the first, and a qualified “no” to the second. The phrase “privileges or immunities” made sense at the time when Congressman Bingham and his colleagues inserted it into the Fourteenth Amendment. Contemporary misunderstanding of that clause reflects continuing failure to appreciate positive aspects of the framework offered by Justice Miller in 1873.